I'm a Visiting Professor at Cardozo Law School where my research focuses on media law with a particular focus on law and social media. Previously, I was the Editorial Counsel for Forbes magazine and Forbes.com. E-mail me at kai.falkenberg@yu.edu.

Kerry Kennedys DUIarrest in a Westchester County, NY highway crash yesterday morning was likely caused by Ambien-induced sleep driving — the same drug responsible for former U.S. Commerce Secretary John Bryson’s crashes in L.A. last month leading to his cabinet resignation. The details of Kennedy’s crash have all the hallmarks of sleep driving — the bizarre but disclosed side effect which causes users of Ambien to get out of bed and drive their cars while still asleep with no memory of their actions. It occurred in the early morning, likely just hours after she took the drug. She continued driving even though she had a flat tire. She was disoriented. She remembers nothing of the incident. And just like in John Bryson’s case, after Kennedy stopped the car at the bottom of an exit ramp, officers found her slumped behind the wheel.While Kennedy reportedly told officers on the scene she’d taken Ambien, spokesman Ken Sunshine later denied she had drugs or alcohol in her system. Sunshine has not yet commented on whether Kennedy may have been sleep driving.

Like Bryson, reports on the Kennedy incident now claim a seizure may have caused it. That’s despite warnings at the top of each Ambien medication guide advising users that taking it “may [cause you] to get up out of bed while not being fully awake and do an activity that you do not know you are doing [including] driving a car (‘sleep-driving’).” Many users refuse to believe this side effect can happen to them despite thousands of reported incidents in criminal dockets across the country and in the FDA’s Adverse Event Database.

Ironically, it was her cousin, former Congressman Patrick Kennedy, that first brought public attention to the problem of Ambien-induced sleep driving in 2006 when he crashed his Mustang convertible into a capitol hill barrier at 2 am telling officers he was late for a vote. Kennedy had gotten out of bed after taking Ambien and an anti-nausea medication. Around the time of Patrick Kennedy’s incident came a class action agains the drug maker complaining of another curious side effect: sleep eating. Plaintiff’s lawyer Susan Chana Lask cited examples of clients gobbling strange things after partially waking up in the middle of the night — raw eggs, including the shells, and buttered cigarettes.

In the wake of the class action, and more than a dozen officially reported incidents of sleep driving, the FDA required the drug makers to revise the drug’s label. It now warns the 39 million people who take Ambien that the drug can cause them to eat, have sex or drive without knowing it and with no memory of their conduct. But it makes no mention of the legal ramifications that users like Kerry Kennedy face if they’re among the unlucky ones to suffer this purportedly rare side effect. (Ambien, made by French drug maker Sanofi, had peak annual revenues of $2.2 billion in 2006, the year before it went, according to IMS Health.)

Defendants in drug-induced legal predicaments like Kennedy have begun invoking a novel legal strategy: the Ambien defense. Citing the FDA-mandated label, they’ve argued that sleep driving is a side effect not a criminal offense.

Kennedy’s likely to get a fairer shake asserting the Ambien defense than most. Others defendants have had mixed results.

In some cases, it has worked, saving defendants from serious jail time in cases involving vehicular assault and manslaughter. This week, 45 year old flight attendant Julie Ann Bronson faces sentencing for a vehicular assault charge resulting from a 2009 Ambien-induced sleep driving incident in San Antonio, Texas. Bronson drank several glasses of wine during the evening before later taking an Ambien which the drug’s label warns against. She pled guilty and faced ten years in prison for crashing into a family of three and severely injuring an 18 month old girl. Bronson says she recalls taking an Ambien before going to bed and then waking up in a holding cell in her pajamas and barefoot. ”A lady told me I’d assaulted a woman and a child,” Bronson testified. ”I’d never hit anyone in my life. It was surreal. It was like a bad dream.” The jury believed she didn’t intend to get into her car and in a ruling last month, gave her probation instead.

Bronson isn’t the first to avoid jail following sleep driving related fatalities. In 2006, Ki Yong O, a 36 year old lawyer from Andover, Mass. killed Anthony Raucci in an Ambien-induced sleep driving crash. In November 2007, a judge acquitted O of vehicular homicide ruling he couldn’t conclude “beyond a reasonable doubt” the defendant “was voluntarily intoxicated when he operated his motor vehicle.” Two years later a Fresno, Calif. jury acquitted Donna Neely, 56, of similar charges resulting from a crash that killed Cho Thao Her, a mother of 11 children.

Others have had less success with the Ambien defense. Josh Shortt, a Loudoun County, Virginia firefighter and cop, was convicted for DUI in 2008 following an Ambien-induced sleep driving crash. He appealed the conviction — which cost him his law enforcement career — all the way to the U.S. Supreme Court — which declined to hear the appeal in March.

In many cases, like Josh Shortt’s, judges and prosecutors have found the notion of sleep driving inherently implausible despite FDA recognition that it can — and has — happened. Though the FDA recommended drug makers investigate how and why it happens — no studies have been done. That may explain why despite the label change, physicians and patients continue to underappreciate the risk of it occurring.

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Excellent article! Sleep driving on Ambien is a real phenomenon and problem.

My mom mistakenly switched pills after a trip and was taking Ambien in the morning upon waking up and then going to the gym.

She sleep drove and committed at least 3 hit and run accidents in 3 consecutive days (usually parked cars and on some days she hit more than one car) until she finally was stopped and arrested by the police after hitting a car stopped at a light. My dad would find her at the breakfast table, bloody and with major damage to her car. She was unaware of the damage, no memory of what happened, and just out of it.

Thanks for sharing your mom’s story. Unfortunately there are thousands who’ve experienced similar incidents. Through a Freedom of Information request I’ve been able to review nearly 800 incidents of Ambien-induced car crashes reported to the FDA. And those are just the tip of the iceberg. According to a GAO report, only 1 to 10% of users who’ve experienced a serious side effect from a drug — like a car crash — report it to the FDA.

I had no problems at all with Ambien before it became available as a generic. It provided a great night’s sleep with no drowsiness the next day. I did have issues with a generic version of Ambien — getting up in the night, slicing a banana and pouring baking cocoa all over it. Yes, I ate much of it. The last time I took the drug, I ‘saw’ and ‘heard’ my dogs and cats speaking to me in English, mouths moving and all, and I have no memory of most of the next morning. I do know that I bumped the concrete wall of the parking garage when I arrived at work, but I do not remember driving there. The pills went into the trash, but I would try the non generic version again.

You’re not the only one that’s had an adverse reaction to the generic Zolpidem. Others have had sleepwalking and sleep driving incidents occur when switching from the branded Ambien to the generic Zolpidem.

Other than the glaring misspellings (Misspelling LOUDOUN is a common mistake, but misspelling VIRGINA???), a good article about a serious problem that needs to be addressed. Unfortunately most prosecutors ONLY care about getting a conviction, with no concern for the person whose life they are forever destroying. Not only is there NO intent to drive or act in a negligent manner, but those who suffer this particular side effect have no knowledge of the things they are doing. Unfortunately it appears that our courts and elected officials would rather convict innocent people than investigate the cause and PREVENT this from happening again. How many unnecessary deaths will occur before they take APPROPRIATE action? How many unnecessary injuries? How much property damage? How many people will be convicted of “crimes” they did not knowingly and intentionally commit? (The words “knowingly and intentionally” are required elements for conviction, by the way.)

Ah… But doing the RIGHT thing would put the responsibility for all this carnage exactly where it belongs… On the drug companies! And when you have the kind of money (and connections) they do, you can – literally – get away with murder.

Thank you so much for your excellent article and for alerting your readers to the dangers of Ambien.

I am from Sydney, Australia, and my youngest sister Mairead died nearly five years ago after jumping from the Sydney Harbour Bridge while in an apparent sleepwalking state, which investigating detectives attributed to her intake of Stilnox (the name Ambien is sold under in Australia) and Imovane (zopiclone, commonly marketed as Lunesta in the States).

My family and I have been campaigning to have this dangerous class of drugs banned altogether, or at the very least rescheduled, as we have heard thousands of horrifying stories of serious adverse reactions over the past few years, including many, many stories of sleep driving, some resulting in death.

I recently wrote an article about my sister’s death for an Australian website, Mamamia, which you and your readers might be interested in reading:

http://www.mamamia.com.au/health-wellbeing/stilnox-killed-my-sister/

If you scroll down to the Comments section, you can read the tragic story of Lindy, who died while sleep driving under the influence of zolpidem (like my sister, there were no other drugs or alcohol in her system at the time of her death).

And this is a link to the petition that my family and I have set up in an attempt to have these drugs banned:

http://www.ipetitions.com/petition/stilnox/

Many of the people who have already signed have detailed their own horror stories, and together they present a pretty compelling case for banning these drugs for the treatment of sleep disorders.

We have also set up a Facebook page, and would love any interested readers to sign our petition and join our Facebook group to show their support for our cause.

https://www.facebook.com/BanStilnox

Thanks again for your article. This is such a poorly understood drug class, and the more that is done to highlight the potential dangers of zolpidem and zopiclone, the better.

Kind regards, Siobhan

PS. When will your article on sleep driving be appearing in Marie Claire?